A Miami photojournalist has recovered a video documenting his arrest by police …

A Miami journalist has recovered video of police officers arresting him after it was deleted from his camera. The man was covering a police effort to evict Occupy Miami protestors. He plans to file a complaint with the police department and with the United States Department of Justice.

On January 31, Miami police evicted Occupy Miami protesters from their downtown campsite. On hand to cover the action was photojournalist Carlos Miller. Along with protestors and other journalists, he was pushed down the street by a line of police in riot gear. He tried to circle around the block to return to his car, but he found his path blocked by a second line of police officers.

The police weren't arresting the other journalists around him, so Miller said he assumed he would be allowed to cross this second line of officers to return to his car. But when he approached one of the officers, he was stopped and placed under arrest. Upon his release the following morning, he found that several videos he had taken, including the one documenting his arrest, had disappeared.

Miller has since recovered some of the missing video, and it appears to back up his story. Though some crucial sequences are missing, the video shows Miller approaching a female police officer, who blocks his path and then calls other officers over to help arrest him.

"You were given a dispersal order, sir, and you were told you were gonna be placed under arrest," she told Miller in the video. "We don't want to have to hurt you," she said.

"I'm not doing anything," Miller responded. "I'm not resisting."

Constitutional violation?

Miller is a member of the National Press Photographers Association. The organization's general counsel, Mickey Osterreicher, sent a letter to the Miami-Dade Police Department protesting Miller's arrest.

Miller was charged with a single count of resisting arrest. "Aside from a blatant violation of Mr. Miller’s First Amendment rights to record matters of public interest in a public place," Osterreicher wrote, "we do not understand how, absent some other underlying charge for which there was probable cause, a charge of resisting arrest can stand on its own?"

"We believe that the recovered video of the incident will show that officers acted outside of their authority, in violation of the First, Fourth and Fourteenth Amendments of the United States Constitution as well as the Privacy Protection Act of 1980 and similar protections provided by Florida law," he wrote.

Osterreicher also pointed to a recent case involving the Baltimore Police Department. In that case, the Obama administration weighed in with a brief arguing that police officers violated the Constitution when they seized a man's recording device and deleted its contents. The United States Court of Appeals for the First Circuit has also ruled that journalists have a First Amendment right to record the activities of the police in public.

Deletion can make things worse

Miller's recovery of his video is a reminder of an important fact about modern digital systems: files that get "deleted" aren't necessarily gone forever. Often the raw data is still on the device and can be recovered. And that means that police officers who delete videos not only expose their departments to liability, they may not even succeed in suppressing the embarrassing video.

Miller's efforts to recover the video were only partially successful, and he plans to take his camera to a forensic specialist in hopes of recovering the remaining segments. He also hopes to determine the exact time the video was deleted, which could substantiate his charge that it was deleted while under police control.

Once he has gathered all the evidence, Miller plans to file a complaint with both the police department and the Department of Justice, objecting to his arrest and the deletion of his videos. The case may further entrench the growing consensus that the Constitution protects the right to record the actions of police officers in public.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.